Judge hears motions in Victoria capital murder case

Attorneys for a Victoria man accused of capital murder tried to prove in court Thursday why the charge should be lowered.

Former Victoria police officer John Swenson testified he investigated the stabbing death of Cynthia Shands on March 3, 2012.

That's when police arrested Tyrel Richards, who was living with her at a home in the 100 block of North Cameron Street.

Swenson was questioned about what the 17-year-old woman looked like when she was found by police dead in a bathtub. Part of what makes the case a capital offense - one in which the state is seeking the death penalty - is that Shands is thought to have been sexually assaulted by Richards.

James "Jim" Beeler, one of Richards' attorneys, got Swenson to agree that while her clothes appeared to be in disarray, they were still on her body.

A medical examiner is expected to testify Wednesday. In one of the defense's written motions, a medical examiner already opined that Shands was not sexually assaulted.

Criminal District Attorney Stephen Tyler provided Swenson with photos taken from the scene that show her shirt and T-shirt pulled aside, though.

The photographs also show Shands suffered blunt force trauma to her head and shoulders and multiple stab wounds; her eyes were gouged, and someone bit her neck.

Tyler pointed to a statute that says a murder can be capital if the defendant attempted to commit sexual assault.

The bite mark coupled with Richards' confession that he intended to sexually assault her but couldn't because he was not able to become erect proves that element of the offense, Tyler said.

Beeler and his co-counsel, Elliott Costas, are trying to get that confession thrown out of evidence.

Beeler's line of questioning suggested that Swenson and other officers were deciding how to charge the case before hearing all the facts or collecting all of the evidence.

"Isn't it the responsibility of law enforcement to evenly enforce the law and not sway it one way or the other?" Beeler asked.

Swenson accidentally left a microphone attached to the lapel of his uniform running while he observed Tyrel's interview with Detective James Poe.

It recorded Swenson telling another officer, "Damn, if he (Poe) could get him (Richards) to say that he sexually assaulted her, it would be capital."

Swenson said the comment was taken out of context, and he was trying to learn more about the process.

There was also some discussion about whether the officers should have questioned Richards after they found a Visine bottle full of embalming fluid and cigarettes soaked in the substance at the scene.

When he was read his rights once at the scene, Richards told officers, "I'm good right now." Later, when he was read his rights again at the police department, he said, "I've got nothing to say."

Tyler said Richards' statements are not enough to exercise one's right to remain silent. However, Richards' attorneys argue because he smoked the laced cigarettes, potpourri, synthetic marijuana or a combination, he wasn't in the right frame of mind to waive his rights.

Beeler said they will offer evidence later that will show how ingesting embalming fluid affects the brain, making one more compliant.

Richards' blood was not drawn or tested.

Swenson said he and other officers acted ethically.

"Richards was engaging with Detective Poe on a normal, conversational level," Swenson said.